When a citizen of San Francisco, our somewhat whacky neighbor at the other end of the bay here in Northern California, started to collect signatures for an initiative to outlaw circumcision, I thought “typical San Francisco silliness — it will never qualify.” When the initiative qualified for the ballot, I hoped the citizens even of San Francisco would see that while reasonable people might well differ on the value or even morality of circumcision, it was surely a personal issue. And my back-up thought was, if it passed, it would be ruled unconstitutional.
However, what I forgot was my old law professor, who, when asking a question, the answer to which was “The Constitution,” would give the clue “it’s bigger than a statute.” And of course what’s smaller than the Constitution, but bigger than San Francisco’s proposed city ordinance is a state statute. And there’s one which a SF judge will rely on tomorrow to order that the “no snip initiative” be snipped from the ballot.
San Francisco Superior Court Judge Loretta Giorgi issued a tentative ruling today, which, unless she backtracks tomorrow, will order the Director of the Department of Elections for the City and County of San Francisco to “remove the measure from the ballot in its entirety.”
Judges can issue “tentative rulings” in law and motion matters the day before a hearing is scheduled. If a judge is pretty darned sure how he or she will rule based on all of the papers submitted to the court, the issue the ruling and if any party wants to be heard at the hearing, they already know what the judge is thinking. Sometimes a tentative ruling will state that the judge is uncertain and would like the parties to address a specific issue. But in this case the judge has made it completely clear her mind is made up. Her ruling states:
The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the legislative history of §460(b) confirms that the legislature intended to prevent cities and counties from regulating medical services which is a matter statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made.
As Ret. Judge Peter Stone in Santa Clara used to say at the start of oral arguments after he had issued tentative rulings, “does anyone want to come up here and explain to me why their written briefs weren’t any good?” In other words, given the language in the tentative ruling, it’s doubtful Judge Giorgi is going to change her mind tomorrow.